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    United States v. Blakely, 4th Cir. (2005)

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    The court dismissed Lori Blakely's appeal of the denial of her 28 U.S.C. § 2255 motion (No. 04-6163) because her notice of appeal was untimely filed more than 60 days after the district court's order. The court also affirmed the district court's denial of Blakely's motion to reopen the appeal period (No. 05-6110) because she failed to file the motion within 7 days of receiving notice that her § 2255 motion had been dismissed, as required by Fed. R. App. P. 4(a)(6)(A).

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    United States v. Blakely, 4th Cir. (2005)

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    21 views4 pages
    The court dismissed Lori Blakely's appeal of the denial of her 28 U.S.C. § 2255 motion (No. 04-6163) because her notice of appeal was untimely filed more than 60 days after the district court's order. The court also affirmed the district court's denial of Blakely's motion to reopen the appeal period (No. 05-6110) because she failed to file the motion within 7 days of receiving notice that her § 2255 motion had been dismissed, as required by Fed. R. App. P. 4(a)(6)(A).

    Original Description:

    Filed: 2005-08-11 Precedential Status: Non-Precedential Docket: 04-6163

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    The court dismissed Lori Blakely's appeal of the denial of her 28 U.S.C. § 2255 motion (No. 04-6163) because her notice of appeal was untimely filed more than 60 days after the district court's order. The court also affirmed the district court's denial of Blakely's motion to reopen the appeal period (No. 05-6110) because she failed to file the motion within 7 days of receiving notice that her § 2255 motion had been dismissed, as required by Fed. R. App. P. 4(a)(6)(A).

    Copyright:

    Public Domain
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    21 views4 pages

    United States v. Blakely, 4th Cir. (2005)

    Uploaded by

    Scribd Government Docs
    The court dismissed Lori Blakely's appeal of the denial of her 28 U.S.C. § 2255 motion (No. 04-6163) because her notice of appeal was untimely filed more than 60 days after the district court's order. The court also affirmed the district court's denial of Blakely's motion to reopen the appeal period (No. 05-6110) because she failed to file the motion within 7 days of receiving notice that her § 2255 motion had been dismissed, as required by Fed. R. App. P. 4(a)(6)(A).

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    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 04-6163

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    versus
    LORI D. BLAKELY,
    Defendant - Appellant.

    No. 05-6110

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    versus
    LORI D. BLAKELY,
    Defendant - Appellant.

    Appeals from the United States District Court for the District of
    South Carolina, at Charleston. David C. Norton, District Judge.
    (CR-00-927; CA-02-4185-2-18)

    Submitted:

    May 18, 2005

    Decided:

    August 11, 2005

    Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.

    Affirmed in part; dismissed in part by unpublished per curiam


    opinion.

    Lori D. Blakely, Appellant Pro Se. Michael Rhett DeHart, Assistant


    United States Attorney, Charleston, South Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    - 2 -

    PER CURIAM:
    Lori D. Blakely seeks to appeal the district courts
    order dismissing her 28 U.S.C. 2255 (2000) motion (No. 04-6163),
    and the district courts order denying her motion to reopen the
    time for appeal under Fed. R. App. P. 4(a)(6) (No. 05-6110).

    We

    dismiss appeal No. 04-6163 for lack of jurisdiction because the


    notice of appeal was not timely filed, and affirm the courts order
    in appeal No. 05-6110.
    When the United States or its officer or agency is a
    party, the notice of appeal must be filed no more than sixty days
    after the entry of the district courts final judgment or order,
    Fed. R. App. P. 4(a)(1)(B), unless the district court extends the
    appeal period under Fed. R. App. P. 4(a)(5) or reopens the appeal
    period under Fed. R. App. P. 4(a)(6).
    mandatory and jurisdictional.

    This appeal period is

    Browder v. Director, Dept of

    Corr., 434 U.S. 257, 264 (1978) (quoting United States v. Robinson,
    361 U.S. 220, 229 (1960)).
    The district courts order dismissing Blakelys 2255
    motion was entered on the docket on August 20, 2003.
    appeal was filed on January 12, 2004.

    The notice of

    We previously remanded to

    the district court with instructions to construe Blakelys motion


    for an extension of time under Fed. R. App. P. 4(a)(5), filed on
    December 15, 2003, as a motion to reopen under Fed. R. App. P.
    4(a)(6).

    Because the record revealed that Blakely was notified by

    - 3 -

    the clerk of court on November 19, 2003, that her 2255 motion had
    been dismissed and because she failed to timely file the motion to
    reopen within seven days thereafter, as required by Fed. R. App. P.
    4(a)(6)(A), the district court concluded that Blakely failed to
    timely

    invoke

    the

    protection

    of

    the

    Rule.

    Accordingly,

    the

    district court denied the motion to reopen the appeal period.


    Because

    our

    review

    of

    the

    uncontested

    facts

    confirms

    these

    findings, we also find that Blakely failed to timely seek the


    benefit of Rule 4(a)(6).

    Thus, because Blakely failed to file a

    timely notice of appeal or to properly obtain an extension or


    reopening

    of

    the

    appeal

    period,

    we

    deny

    certificate

    appealability and dismiss appeal No. 04-6163 as untimely.

    of

    We deny

    Blakelys pending motions for Intervention, to file supplemental


    briefs, to Compel the District Court to Respond to the Remand, to
    place the case in abeyance, and for a writ of mandamus.

    Because

    the district court properly denied Blakelys motion to reopen the


    appeal period, we affirm the order that is the subject of appeal
    No. 05-6110.

    We dispense with oral argument because the facts and

    legal contentions are adequately presented in the materials before


    the court and argument would not aid the decisional process.

    AFFIRMED IN PART;
    DISMISSED PART

    - 4 -

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